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Parents vs. a School District and School Board

Is This the End of Brown
An Editorial on School Assignment Supreme Court Cases

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Parents vs. a School District and School Board
By Leonard D. Chan

On December 4, 2006 the Supreme Court heard two related court cases regarding the use of race as one of the factors in assigning students to primary and secondary schools.

According to the precedence set in Grutter, Gratz, and other Supreme Court cases, whenever a government entity such as a school district uses race in its dealings, the courts must apply "strict scrutiny" to the use. The government entity that uses race must have a "compelling interest" for the use and must use it in a "narrowly tailored" manner. The parties involved in these cases disagree about whether the school districts had a compelling reason for the use and whether the plans were narrowly tailored.

The underlying issues to these cases include the following -
1. Is there a compelling reason to have integrated schools?
2. Are all race conscious policies inherently racist?
3. Should government be colorblind in all its dealings?
4. How can you address the problems of racial inequalities in a society if you can't use race conscious policies?
5. In the absence of functional governmental action will schools continue to become racially isolated and resegregated?

Here are some of the particulars to these cases.

Parents Involved in Community Schools v. Seattle School District
Back in the year 2000, a group of parents, that were not able to get the high schools of their choice for their kids, sued the Seattle School district because they believed that the primary factor in preventing their children from attending their preferred school was the use of race.

The Seattle School District's "Open Choice" school assignment policy worked roughly like this - parents could choose as many schools as they wanted, listing the schools in the order of their preference. If the first choice school had too many applicants (oversubscribed), a series of tiebreakers were used to determine which student got in.

Tiebreakers used in 2001-2002 (the system that is being evaluated by the courts) -
1) Applying students with a sibling already at the school would be allowed in ahead of kids with no siblings at the school.
2) The race or ethnicity of the student would then be used if the applied for school was deemed racially isolated. Racial isolation was defined as being out of the 15% plus or minus range of the demographics of the district. At the time of the plan, the district had a rough ratio of 40% white to 60% non-white. So a racially isolated school would either have a ratio of 25% white to 75% non-white or 55% white to 45% non-white. A student that helped bring a school out of racially isolation would be allowed ahead of a student that increased racial isolation. Note that the range was increased from plus or minus 10% (used in 2000-2001) to 15%, thus causing fewer schools to be defined as racially isolated.
3) Distance was then used and was the default if no school preference was chosen. Students that lived closer were given preference ahead of further away students. Note that the distance tiebreaker was the second tiebreaker used in the 2000-2001 school term. The race tiebreaker in 2000-2001 was the third tiebreaker.
4) The last rarely used tiebreaker involved the use of a random lottery.

High schools that were not oversubscribed did not use tiebreakers. All students that chose these schools got their choice without any consideration of race. Seattle was never ordered to desegregate by a court order. The plan described above, that the petitioners sued over, was the culmination of earlier plans that changed over time since 1963.

The Seattle School District continues to review and revise its assignment system. The "Open Choice" system using race as a tiebreaker was ended for the school term of 2002-2003 and has not been used since. If the race factored "Open Choice" system were still in use, none of the parents that initially sued currently have students that would have been affected. Those students have all graduated.

The lower 9th Circuit Court eventually approved of the "Open Choice" plan and the petitioners then made an appeal of the case to the Supreme Court. It is believed that if the Supreme Court approves of the 2001-2002 plan, the Seattle School district would once again use race as a factor in assigning students to their schools.

Meredith v. Jefferson County Board of Education
Crystal Meredith and her son moved in August of 2002 to a school district in Louisville, Kentucky and attempted to enroll her son at Benjamin Franklin Elementary School as a kindergartner. The school had already started its school term in July so Meredith's son was assigned to another school.

Meredith appealed to have her son enrolled in a school of her liking, but her appeal was not granted because the school she chose was not among a number of schools she could choose from. Meredith eventually was granted the school of her choosing in a following school term, but by then she had already sued the school board on the grounds that she did not get her preferred school because of her son's race.

The Jefferson County Board of Education used a complex system for their school assignment plan. Here is a rough description of their "managed choice" assignment system.

Geographic regions are drawn for each school with race as a factor used in determining the boundaries of the region for the school. All students living within a school's designated region are automatically assigned to that school. This first assigned school is designated as the student's "reside school."

Along with reside schools, the school district also has a number of magnet schools that do not have pre-designated geographic assignment regions. Some of the reside schools also have magnet programs within their schools that act as a school within a school.

Middle and high school students have the option to select a first and second choice magnet school or magnet program. Placement into a student's first or second choice magnet school depends on the available space in the school, the racial guidelines, and the applicable criteria for the school or program.

Elementary reside schools are grouped in clusters called "cluster reside schools." Elementary school students can choose an alternate first and second school within their reside school's cluster. Additionally, they could choose an alternate first and second choice magnet school or magnet program.

The assignment plan's objective is to have each school have not less than 15% and not more than 50% black students.

After a school is assigned to a student, parents are allowed to place a transfer request based on day care arrangements, medical criteria, family hardship, student adjustment problems, and program offerings.

Another pertinent issue to this case was that up to the year 2000, the Jefferson County Board of Education was under court order to desegregate their schools. Over 20 plus years, the court had no problem with the use of race conscious methods to desegregate the school district. When the schools were deemed to be in balance, the court order was ended. In order to prevent re-segregation the Jefferson County Board of Education chose to continue similar race conscious methods for their school assignment plan.

Snippet from the Supreme Court Oral Arguments
During the court arguments for Parents Involved in Community Schools v. Seattle School District (Parents v. SSD) one of the interesting issues discussed was whether governmental racial integration objectives were strictly forbidden or not.

Justice Kennedy posed Mr. Korrell, the Parents' lawyer, with a hypothetical question about whether using the placement of a school to achieve racial diversity was legal or not. The apparent purpose of this line of questioning was to get the parties involved into a discussion as to how colorblind government should be. When Mr. Korrell seemed evasive about answering the hypothetical, Justice Ginsburg questioned Korell directly with the following.

JUSTICE GINSBURG: But can they have a race conscious objective? I think that that's the question that Justice Kennedy is asking you, and I don't get a clear answer. You say you can't use a racial means. But can you have a racial objective? That is, you want to achieve balance in the schools.
MR. KORRELL: Justice Ginsburg, our position is that that is prohibited by the Constitution absent past discrimination.

Paul D. Clement, Solicitor General from the Department of Justice (DOJ), spoke in support of both petitioners (Parents and Meredith) before the court. The DOJ had also submitted amicus curiae briefs (friends of the court written arguments) to the Supreme Court. Kennedy and other justices wanted to continue the line of questioning regarding the limits of government's goal of racial diversity and the means that could be used to get it. In Clement written brief their position appeared to be slightly different from those of the petitioners.

Clement's position was that government could have a compelling interest for racial diversity, but that they could not use racial means to achieve it. Here is part of their discussion.

JUSTICE KENNEDY: At page 7 of your brief you say: "School districts have an unquestioned interest in reducing minority isolation." If I put a period in there, then I would get to my strategic site selection, and I still haven't got your answer on that. You don't put a period there. You say: ". .have an unquestioned interest in reducing minority isolation through race-neutral means." And this brings up this same question Justice Ginsburg had. Isn't it odd jurisprudence where we have an objective that we state in one set of terms but a means for achieving it in another set of terms, unless your answer is that individual classification by race is, is impermissible, but other, more broad measures based on, with a racial purpose are all right?
And what is the answer to my strategic site selection hypothetical?

GENERAL CLEMENT: We would say that's fine. We would say that that is permissible, for the school to pursue that. Just to get back, though, again, we say that that avoiding racial isolation is -- I just want to make the point, we say that racial isolation is an important government interest. I think if you put this plan up against that objective, it solely fails, because there are two high schools that I think you would look at as being racially isolated.

In the oral arguments for the Meredith case, Kennedy expressed his concern with Mr. Mellen, the lawyer for the Jefferson County Board of Education, of whether a school board could misuse the power of assignments based on race.

JUSTICE KENNEDY: ... The question is whether or not we can say that an insincere school board, people that want to play the race card, who want to play... the race chip, that want a system in which they can use race for political advantage, can do this based on the color of the individual child's skin. That's what's involved here.
MR. MELLEN: I don't think that's what is involved in this case, Your Honor, because the District Court found that the board's motives were indeed legitimate and that there was no basis --
JUSTICE KENNEDY: I'm conceding that. The Constitution assumes that this might not always be the case. Are we going to look at the sincerity of the school boards, school by school board, school board member by school board member?


Briefs for Parents Involved in Community Schools v. Seattle School Districts - Includes transcript of oral argument

Meredith v. Jefferson County Board of Education - Includes transcript of oral argument

CSPAN's audio of the oral arguments and reactions

Brown v. Board of Education
Teacher's guide from the National Archive
Fifty Years After Brown - winning entry for the National History Day contest

Editor's Message

Hello Everyone,

Seasons Greetings!

I'm running way behind like usual, so I'll cut to the chase. Please bear with me, I only do this once a year.

AACP humbly asks for your assistance.

A recent discussion I had with someone, reminded me that many of you might not know the mission of AACP. You may only think of us as that bookstore with all the Asian Pacific American children, culture, and history books. As I find myself often saying, "AACP is more than a bookstore." This will most likely not be the last time I use those words, because I've heard that repetition is the key to getting a message across.

AACP is More than a Bookstore :)
So in case you haven't heard or read our mission statement before, here it is again.
AACP is a non-profit organization whose mission is to educate the general public about Asian Pacific American culture, history, and current experiences to combat prejudice and hate, to right and prevent civil injustices (resulting from prejudice and hate), to promote self-awareness, and to foster compassion, understanding, and tolerance.

AACP's goal is to do more than educate Asian Pacific Islander Americans about their own culture, heritage, and history, we hope to reach all Americans, because prejudice and hate comes from ignorance, and tolerance and compassion comes from better understanding.

This month's articles reminded me of the importance of what we do and what we hope to do with this newsletter. Philip Chin (our other editor) upon hearing the mission statement again said, "Maybe the statement's a little too ambitious." Thankfully we have the Internet - you can reach so many more people than you would just by going to conferences and shows, and meeting them at our store.

Conferences and shows, and our publishing functions continue to be important vital duties of our organization. We love providing these great services directly to you. However, since the fall of 2001, we've had over a million actual visitors to our website and newsletters. Nearly 500,000 came just this year.

I'm not sure how much longer we can continue this newsletter. Our strategy has been like a field of dreams, "Build it and they will come." Your financial assistance will be an investment that lets us know that you believe we're on the right track. If you know of other organization that would like to underwrite the newsletter we'd like to hear from them too.

So please help us continue serving you, the community, and everyone that has Internet access that comes to visit our site.

Make a
Make a
Make a
Make a
Make a

Up Coming Events

Here are some events that AACP will soon be attending. Invite us to your events.
Jan. 13
3rd Annual Poetry In San Mateo Day
A Beginning of the Year Poetry Celebration
With Poet Genny Lim
529 E. 3rd Ave.
San Mateo, CA
Feb. 24-25 Reading the World IX USF
2350 Turk Blvd.
San Francisco, CA
Mar. 2-4 California Council for the Social Studies Conference Marriott Oakland City Center
Oakland, CA
Mar. 4
Chinese New Year's Celebration Stockton Civic Aud.
525 N. Center St.
Stockton, CA
Mar. 24-25 Marysville
127th Bok Kai Festival
3rd & D St.
Marysville, CA
Other Event of Interest that AACP May Not Attend
Feb. 10-
Mar. 4
Chinese New Year
Celebration Events in SF
San Francisco, CA
Feb. 18
Vietnamese Spring Festival & Parade
Parade 11am-1pm
Parkside Hall
180 Park Ave.
San Jose, CA
Mar. 3
Chinese New Year Parade San Francisco, CA

(Editor's Message Continued)
Hey, all of you out there, don't forget to write your New Year's poems and join us for our Third Annual New Year's Poetry event. We have poet and performer Genny Lim coming, along with other AACP friends. If you can't make it, just send me your poem and I will try to get it in the newsletter or read it at the event for you.

Thank you Alan Underwood and others from the Berkeley Office of Planning & Analysis for your assistance. I hope to do another article in the future about how Berkeley and other schools are trying to handle race neutral admission policies. There's so much juicy information on this topic.

Thank you, to Philip, Sophie, and everyone else that has helped with the newsletter this past year.

Have a great Holiday Season!

Leonard Chan
Executive Editor

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Is this the End of Brown?
An Editorial on Parents Involved in Community Schools v. Seattle School District and
Meredith v. Jefferson County Board of Education

by Leonard D. Chan

After reading 11 legal briefs, listened to and read the Dec. 4th oral arguments before the Supreme Court (multiple times), and read the 9th Circuit Court's opinion on Parents v. Seattle School District, I'm not sure what I can add to this debate. I don't envy the Supreme Court Justices that will write opinions on these cases. The article that we supplied in this newsletter does not do justice to all the nuances and complexity of the Parents and Meredith cases.

For those of you that have not paid much attention to this story and do not believe the cases have much relevance to you, please do pay attention. I believe that these cases relate directly to the core mission of AACP and if you are a regular reader of this newsletter, I believe you will find these cases to be as important as I have found them to be.

Here are some of my thoughts on these two cases.

Is race consciousness racism?
After the oral arguments, Theodore M. Shaw, legal counsel for the NAACP Legal Defense and Educational Fund, summed up the two court cases the following way. Audio at CSPAN - Supreme Court School Integration Cases Reaction
"The broader issue, is whether or not it is going to be legal or constitutional in this country to voluntarily and consciously do anything about racial inequality. And for our adversaries, for some of them it's very clear, there's no stopping point on that. They believe that outside of a court order it should be illegal to do anything that is conscious about race because they equate race consciousness with racism. And that's the only way you can get to the point where you say efforts to integrate public education are some how discriminatory and segregated. It is a bold face lie at worst. At best it's steeped in ignorance and is a fundamental betrayal of what Brown was about, what the Legal Defense Fund has been about, what this country says it's about. And it is also a betrayal of Martin Luther King's dream, whom they attempt to hijack in support of their colorblind America. Which isn't really about colorblindness. It's about blindness to the reality of continued racial inequality."

I believe Theodore Shaw described the central issue very well. The broad issue of these cases do really revolve around the question "Is race consciousness racism?"

Wait, before half of you tune out and stop reading because you think you won't agree with what I have to say, I think I can really see and understand both sides of this argument.

I'm not a parent, so some of you parents out there may say that I don't know what it's like and may believe that people on the liberal side of the argument shouldn't be doing social experiments with your kids. You have every right to want the best for your children and to be able to have some control over the schools and education that your children get.

Anybody who has studied the two school districts' assignment plans, whether you're for the use of racial conscious methods or not, will see some flaws in these systems. But if the Supreme Court Justices rule against the school districts in a sweeping manner, they might reverse all the beneficial gains that have been made over the last five decades since the Brown v. the Board of Education decision.

The Brown decision eliminated government sanctioned racial segregation in schools. What is at odds now is government's desire for diversity versus the human nature tendency towards segregation. The libertarian side in all of us (some more strongly) may believe that we should let free choice sort it all out - that as long as government does not discriminate, things will work out fine. State passed propositions, like California's Prop. 209, shows that many of you believe in this "fair minded approach," that government should not use race in any discriminatory manner.

But this takes us back to Theodore Shaw's point that race consciousness is not equated to racism. The definition of racism usually contains some negative aspect of the use of discrimination for the purposes of disempowering and empowering different racial groups. If the school districts truly believe that racial diversity in it's schools would be good for all of its students, then the denial of a parent's choice of schools for the sake of racial diversity could really be seen as benefiting both the denied student and every student.

At several points during the oral arguments, Justice Scalia and others were basically indicating that "the ends do not justify the means." In these cases the wrongness of the means is more a matter of perception. The parents that sued obviously did not like the racial means, but for the majority of other parents, that were not a party to these suits, the means were not perceived as being overly unfair.

The parents that sued, perceived discrimination in the means because they did not value racial diversity as highly as other factors, like academics, that went into their decisions. I would venture to guess, that the racial diversity of the school was most likely the least of the factors that they considered to be important. In fact, the American Psychological Association's brief describes how even the most liberal minded of individuals may still avoid interaction with people that are different from themselves and thus may consciously or subconsciously choose to isolate their children based on their own aversions.

Is racial diversity really a compelling state interest?
Crystal Meredith's Petitioner's Reply Brief cite several studies, described in other briefs, that support their contention that the Jefferson County Board of Education's desire for racial diversity did not rise to the level of "compelling state interest" because the social science research in this area was inclusive.

Upon reading the brief by Armor, Thernstrom, and Thernstrom, which was in support of Meredith, you could reasonably come to the same conclusion that the social science research on the impact of racially diverse schools was inconclusive.

But when I read several briefs that cited all the peer reviewed research that showed the benefits that came from racially diversity, I could not help thinking of the parallel with the research on global warming. Like the debate on global warming, which basically has a handful of researchers in disagreement with the vast majority, so too does it seem that only a handful of researchers are in disagreement with the majority of scientists in this field of study.

Three of the interesting scientist backed briefs in support of the school districts' claim of racial diversities' importance, were the ones submitted by the American Educational Research Association (with more than 24,000 members), a group called 553 Social Scientist, and the American Psychological Association (with more than 145,000 members). All three of these briefs and even the brief by Armor are worth reading. I will try to summarize the conclusions of the three scientific briefs in support of the school districts.

Racial integration in schools
1. Promotes cross-racial understanding, and reduces racial stereotypes and prejudice - extensive psychological research shows that, under certain conditions, interaction among persons of different races can diminish racial stereotypes and promote crossracial understanding, empathy, and mutual respect. It is particularly more important for children to get this interaction because their racial views are still open and unformed. Children that have regular interaction with persons of other races are less likely to fall into patterns of stereotypical thinking about other racial groups and are more likely to learn to regard others as individuals.
2. Improves learning - students of different races and ethnic backgrounds often bring different cultural knowledge and social perspectives into school. Racially diverse classrooms enhance critical thinking by exposing students to new information and understandings.
3. Improves academic achievement - although study results in this area are a little less conclusive, minorities that go to integrated schools do show higher academic achievement than those that remain at racially isolated schools. Racially isolated minority schools tend to have higher teacher turnover and thus fewer experienced high quality teachers. Minority schools also tend to have fewer resources. Thus teacher and resource disparities lead to disparities in academic achievement. Minorities that go to integrated schools also tend to earn higher degrees and major in more varied fields.
4. Improves life opportunities - diverse schools can lead to wider and more diverse, post school, social and professional networks. It's not just what you know, it's also who you know. These networks can lead to more college and work opportunities.
5. Can lead to positive effects on communities and society - better cross-racial understanding carried over to adulthood leads to more racial harmony in and out of the workplace. It has even lead to reductions in residential segregation and increases in civic engagement. Better understanding and less prejudice aids social cohesion. Communities and societies that lose cohesion often degenerate into ugly conflicts. You only need to read or watch the news to see lots of examples of why social cohesion is so vitally important.

What has been the effect of race-neutral policies in California Schools since proposition 209?
In San Francisco, the school board has been working, with little success so far, at trying to find new ways to create diversity within it schools. Since the passage of 209 in the fall of 1996 until 1999, San Francisco was allowed to continue using racial measure in it school assignment plan because they were under federal court orders that allowed them to use racial measures to desegregate their schools. A lawsuit that was settled in 1999 forced the school district to end the use of race in its school assignments. According to a report by UCLA Prof. Stuart Biegel, who was appointed to monitor the district's desegregation efforts, each year since 1999, there has been an increase in the number of severely resegregated schools. Severely resegregated is defined in this context as a school having any grade level within the school with 60% or more of one racial group. Here are some figures. Note that San Francisco has had approximately 113-119 schools during this period and that more recent figures, for the number of severely segregated schools, are not exact because parents can decline to state their ethnicity.
Source: final supplemental report 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006
# Severely Resegregated Schools 30 34 41-43 43-45 49-52

In a Nov. 3rd National Review editorial by Rich Lowry he states "Prop. 209 has been a success." He goes on to describe how minorities at the University of California system have done well. Another editorial at also speak glowingly of how prop. 209 did not harm enrollment at the UC system. Both cite how enrollment of underrepresented minorities (American Indian, African American, Chicano and Latino) has either stayed the same or gone up and of how schools like UC Berkeley's underrepresented are actually graduating at a higher percentage rate than before 209.

The reality is that California is now graduating a higher number of minorities from its high schools than before 209 passed in 1996. A San Francisco Chronicle article states that underrepresented students made up 39% of the California high school graduates and 18% of the freshmen at UC in 1997, and 46% of the CA high school graduates and 19% UC freshmen in 2005. UC enrollment has not been keeping pace with the increasing demographics of the underrepresented.

The UC Berkeley underrepresented increase in graduation rate was equally deceiving. Numbers supplied by the Berkeley Office of Planning & Analysis show that although the percentage had increased, the actual numbers graduating were significantly lower. In 2003, 572 underrepresented Berkeley students graduate and in 2004 it had 312. 2005 was only slightly better at 361. The 10-year average between 1994 and 2003 was 592. So the figure for 2004 compares quite poorly relative to the previous 10 years.

In a March 2005 interview UC Berkeley's chancellor Robert J. Birgeneau states, "I think people voted for 209 idealistically and generally thought it would produce a fairer system. My conclusion, and the conclusion of many people around me, is that because it has resulted in a dramatic diminution in numbers of particular classes of California citizens, it has in fact created a system that is quite unfair."

What can we do if the Supreme Court decides to eliminate the use of race conscious policies for school assignments?
This is the question that California schools have been trying to answer for the last 10 years since prop. 209's passage. Two other states, Washington and Michigan, have since passed similar referendums to 209. Whether or not the Supreme Court decides to eliminate race conscious school assignment policies, it appears that voters are starting to end the policies on their own.

According to a San Francisco Chronicle article, San Francisco parents are starting to take an active role in marketing and recruiting for the schools that their kids go to. Perhaps a partial solution is in the marketing of schools.

If parents were fully briefed on the importance of integrated schools, perhaps they would factor in a school's diversity into their school choices. Perhaps a way should be found to test cultural awareness, prejudice and stereotypical views, and empathy, and should then be included with a school's math, reading, and writing scores. If parents did not know the benefits of math and chose to send their kids to schools that did not teach math, this would be a disaster of great magnitude.

One need only look at almost every conflict taking place in the world today and see the costs of segregation and balkanization. The benefits that come from racial integration and learning to live with each other are that important. Maybe peace on earth really does begin with the simple act of children sitting down with others that are different and learning from each other.


The following books are discounted for subscribers to our newsletter. The discounts on these books end January 8, 2007.

Hmong and American
Stories of Transition to a Strange Land

By Sue Murphy Mote
2004, 306 pages, Paperback.

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Piecing Earth & Sky Together

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Bamboo Among the Oaks
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Dia's Story Cloth
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Folk Stories of the Hmong
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